Cohabitation laws in Scotland are in need of reform as they do not help grieving people or vulnerable individuals, according to a recent report by the Law Society of Scotland.
Under current legislation, a surviving cohabitant can only make an application to the court where there is no will following the death of their cohabitant. If a cohabiting couple separate, the Act stipulates the cohabitants have a year to make a court application, and when a cohabitant dies, the surviving cohabitant has six months from the date of death to make an application.
The court is currently under no obligation to accept an application once the six-month time limit from the date of death of the cohabitant passes. However, Member of the Law Society of Scotland’s Trusts and Succession Law Sub-Committee, Mr Kerrigan, explained, that during this time “an individual is likely to be grieving and struggling to deal with practical matters following the death of a partner.”
Kerrigan also looked at how vulnerable individuals can be at a disadvantage by the strict time limits, as “an abused partner may be reluctant to pursue a claim shortly after the breakdown of the relationship for fear of repercussions.”
The report notes it is ‘interesting’ that other areas of the law are afforded more time to raise an action, such as three years for personal injury actions, and five years for negligence actions.
Following research that revealed 76 per cent of solicitors found the time limits to be a ‘problematic’ area of the law, the Law Society proposed an extension of up to one year from the date of death. Should the confirmation be obtained for the deceased’s estate after the expiry of 12 months from death, the Law Society suggests up to six months from the date of confirmation - “under either circumstance, it should also be open to the court to allow the late lodging of an application.”
Additionally, the Law Society has called for a more extensive review of the provisions of sections 25 – 29A of the Family Law (Scotland) Act 2006, highlighting a number of other matters relating to the law on cohabitation.
You can read the full report here.
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